ESP Due Process Sumary

Tom Stern, NCAE Attorney 8-13-01

SUMMARY: In June, 2001, after months of intense lobbying by NCAE, the NC legislature passed Senate Bill 532, entitled: An Act to Clarify the Right to Appeal to a Local Board of Education, and to Require Notice of the Dismissal, Demotion, or Suspension Without Pay of Noncertified Employees. This legislation guarantees for the first time certain due process rights for all non-certified school employees.

WHAT THIS BILL DOES: The new legislation provides the following for Educational Support Personnel (ESP):
A. WRITTEN NOTICE OF REASONS FOR A DISMISSAL, DEMOTION OR SUSPENSION WITHOUT PAY
SB 532 guarantees that ESP who are dismissed, demoted or suspended without pay shall receive, upon request, “written notice as to the reasons for the employee’s dismissal, demotion or suspension without pay.” Such notice “shall be provided to the employee prior to any local board of education hearing on the issue.” This is a critical right. No longer will ESP have to “guess” about why they are being dismissed or demoted, nor feel like they are defending against reasons that keep changing like a “moving target.”
B. GUARANTEED HEARINGS BEFORE THE BOARD
SB 532 ensures that ESP and certified employees have a right to a hearing before the board of education on all final administrative decisions affecting the terms and conditions of their employment or the status of their employment. “Terms and conditions of employment” is a very broad phrase. It includes suspensions with or without pay, involuntary transfers, changes in duties, changes in work schedules, assignments out of field, assignments of extra duties, denial of bonus monies, denial of short term disability, denial of leave days, and virtually every other employment decision.
The statute also requires that the local board give notice of the hearing time and place to all parties involved, and ensure “that a record of the hearing is properly entered in the records of the board conducting the hearing.”

C. GUARANTEED APPEALS TO SUPERIOR COURT
SB 532 grants ESP the right to appeal board decisions to superior court in the following two situations:
1. any board decision concerning their dismissal, demotion or suspension without pay; and
2. any board decision where the ESP staff person has alleged a violation of a specified federal law, state law, State Board of Education policy, state rule, or local board policy.
A school employee must prove one of the following grounds in order to prevail in superior court: “the local board’s decision is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the board, is made upon unlawful procedure, is affected by other error of law, is unsupported by substantial evidence in view of the entire record as submitted, or is arbitrary or capricious.”

THANKS TO OUR MEMBERS: With the help of dozens of ESP and certified members phoning, emailing, and personal visits to legislators, ESP have gained new rights in their fight to be recognized for the contributions that they make to our public schools.

THANKS TO OUR COALITION PARTNERS: NCAE was able to form a coalition of other school employee organizations such as the school board association and the superintendents association to blunt opposition to this new law.